Decision Date: 07/31/95 Archive Date:
08/03/95
DOCKET NO. 94-01 260 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to a permanent and total disability rating for
pension purposes.
REPRESENTATION
Appellant represented by: Tennessee Department of
Veterans' Affairs
ATTORNEY FOR THE BOARD
A. A. Booher, Counsel
INTRODUCTION
The veteran had active service from May 1963 to March 1965.
This appeal to the Board of Veterans' Appeals (the Board) is
from a rating action by the Department of Veterans Affairs
(VA) Regional Office (RO) in Nashville, Tennessee in
September 1993.
REMAND
The veteran was born in August 1939, has a high school
education and worked in the past in an assembly line and as
a farmer. He is currently unemployed. He reports being
treated on an ongoing basis at the VA outpatient facility;
some of those record are in the file. The veteran has not
been afforded a VA examination.
The other evidence of record reflects that the veteran has
respiratory and cardiac problems including hypertension with
electrocardiogram (ECG) abnormalities, as well as some
recurrent low back problems, and has also has been seen for
other complaints. It is unclear whether the veteran is in
receipt of Social Security Administration (SSA) benefits.
In Waddell v. Brown, 5 Vet.App. 454, 457 (1993), the United
States Court of Veterans Appeals (the Court) stated that the
Board had breached its duty by not seeking to obtain SSA
records.
In Roberts v. Derwinski, 2 Vet.App. 387, 390 (1992), and
Abernathy v. Principi, 3 Vet.App. 461 (1992), the Court held
that each disability in a pension case must be assigned a
percentage rating, that adjudication of nonservice-connected
pension claims must be conducted with regard to all
disabilities demonstrated by the veteran; that the RO should
discuss the diagnostic codes used in evaluating a claim;
that a rating decision may not be based on an examination
that was conducted before all relevant evidence was
gathered, and that the effect of pain on employability must
be addressed. Finally, in Brown v. Derwinski, 2 Vet.App.
444, 446-47 (1992), the Court held that a pension claim must
be considered under both the "average person" standard and
the "unemployability" standard. See 38 U.S.C.A. § 1502(a)
(West 1991); see also 38 C.F.R. §§ 3.321, 4.17 (1993). This
has not been accomplished for all the claimed disabilities
in the present case. Consequently, additional development
is necessary in order to comply with the applicable laws and
regulations as set forth in Brown.
The Board finds that additional development is required.
The case is REMANDED for the following actions:
1. The RO should ask the veteran if he has applied for SSA
benefits, and if so, the RO should obtain copies of the
determination notice and the documents (including medical
reports) which were the basis of the SSA determination, and
these records should be associated with the claims folder.
2. The RO should ask the veteran to identify any private
physicians from whom he received care or evaluations since
1992, and after appropriate release, the RO should obtain
copies of clinical records from each physician identified by
the veteran.
3. The veteran's up-to-date VA outpatient and inpatient
treatment records from the VA medical facility at Mountain
Home, Tennessee, should be acquired and added to the claims
folder.
4. The veteran should be scheduled for a VA general medical
examination in order to ascertain the nature and severity of
all of his disabilities. The scope of the examination
should be broad enough to cover all diseases, injuries, and
residual conditions which are suggested by the veteran's
history, symptoms or findings at the time of examination.
The examiner should refer the veteran for consultations by
specialists as needed. All complaints or symptoms having a
medical cause should be covered by a definite diagnosis.
All indicated tests and studies, including X-ray studies and
an ECG, are to be performed, including a serial blood
pressure readings assessment. The claims folder and all
evidence obtained pursuant to this REMAND must be made
available to the examiner. The examiner should offer an
opinion as to the effect the disabilities found have on the
veteran's ability to work.
5. The RO should then readjudicate the veteran's claim.
The rating decision should list all of the veteran's
disabilities and the percentage evaluation assigned each
disability. If a permanent and total rating for pension
purposes remains denied, the Supplemental Statement of the
Case should cite the appropriate diagnostic codes and
provide a discussion of their applicability to the veteran's
disabilities. This document should also provide a
discussion of the two standards ("average person" and
"unemployability" standard) by which a permanent and total
disability rating for pension purposes may be assigned, as
well as the applicability of 38 C.F.R. § 3.321(b)(2). The
veteran and his representative should then be afforded an
opportunity to respond.
Thereafter, the case is to be returned to the Board for
further appellate review. The purpose of this REMAND is to
obtain additional evidence and ensure that the veteran is
afforded all due process of law. The Board intimates no
opinion, either factual or legal, as to the ultimate
conclusion warranted in this case. No action by the veteran
is required until he is contacted by the RO.
GARY L. GICK
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This action has been
taken in accordance with the Veterans' Benefits Improvements
Act of 1994, Pub. L. No. 103-446, § 303, 108 Stat. 4645, ___
(1994), and is in the nature of a preliminary order and does
not constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1994).
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